NSW Caselaw
CITATION: Choy v Willoughby City Council [2010] NSWADT 237
DIVISION: General Division
APPLICANT Guy Choy PARTIES: RESPONDENT Willoughby City Council
FILE NUMBER: 103005
HEARING DATES: 8 April 2010
SUBMISSIONS CLOSED: 1 July 2010
DATE OF DECISION: 7 October 2010
BEFORE: Wilson R - Judicial Member
CATCHWORDS: Whether documents in the possession of a third party are held by an agency. The principles pertaining to documents in the possession of a solicitor retained by an agency for the purposes of litigation. Legal Professional privilege exemption.
LEGISLATION CITED : Freedom of Information Act 1989, s.6(e)
CASES CITED: Waite v Hornsby Shire Council [2007] NSWADT 265 Ganley v Northern Sydney Central Coast Area Health Service [2009] NSWADT 161
APPLICANT In person REPRESENTATION: RESPONDENT C Bolger, barrister
The decision under review is set aside and in lieu thereof the following orders are made: 1. As to the two documents numbered 3 and 4 in annexure D to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act ORDERS: 2. As to the two documents contained in annexures B and C to exhibit R4, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 and are not exempt documents and therefore the applicant is granted access to them pursuant to the Act 3. As to the seven documents contained in exhibit R3, the Tribunal finds that they are held by the respondent for the purposes of the Freedom of Information Act 1989 but are each exempt documents by reason that they are subject to legal professional privilege and therefore the applicant is not granted access to them pursuant to the Act 4. The respondent is to give access to the four documents referred to in orders 1 and 2 forthwith, but not before the expiry of the appeal period 5. The documents contained in exhibit R3 are not to be disclosed without further order of the Tribunal.
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